On the need to change the approach to the concept of “information” in legislation and judicial practice
DOI:
https://doi.org/10.21638/spbu25.2019.107Abstract
The author of the article discusses the meaning of information as an object of legal relations. In connection with the decisive importance of the role of “information” in all spheres of the modern society, the protection of the considered social good is a priority task of the state. However, despite the importance of information, in Russian law there is no systematic and consistent legislative regulation of information relations. Legislative contradictions, the lack of a unified terminology and a scientific approach do not contribute to the effective legal protection of the considered good and the formation of a uniform judicial practice. The author’s understanding of the term “information” as an object of legal relations has been developed on the basis of a system analysis of legislation and law enforcement practices, and its main features have been considered. The author substantiates the conclusion that information is the object of civil legal relations. In connection with this, it is proposed to return to Article 128 of the Civil Code of the Russian Federation as an indication of information as an object of civil rights and the subject of unauthorized access to computer information is analyzed (Article 272 of the Criminal Code of the Russian Federation). The subject of the crime under Article 272 of the Criminal Code is information, access to which is directly limited by law, as well as information in relation to which the holder’s requirement of restrictions on its use (access) is clearly expressed and declared to an indefinite number of persons. The question of classifying the information of the second category as a protected criminal law must be determined by a judge in each specific case. It is concluded that the basis of the legal protection of information is a direct indication of the law or the establishment by the owner of publicly available information of a procedure for handling it. The general availability of computer information implies the possibility of its unhindered use (copying, distribution), and not obstruction, destruction or modification. Criteria are proposed for a court to rule on the provision of legal protection to information that is not directly classified as restricted by the law and methods of unauthorized access to computer information is analyzed. In order to eliminate legal uncertainty, a new understanding of the term “legally protected computer information” is recommended.
Keywords:
information, unauthorized access to information, computer information, grounds for legal protection, criminal law protection of information, confidential information
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